Preston v Ararat RCC [2011] VCAT 2254 (30 November 2011)

1. The case of Domus Designs Pty Ltd v Frankston City Council [2006] VCAT 1127 provides a useful summary of the test which the Tribunal normally applies, in terms of the relevant case law as to the acceptability of a contested planning permit condition. At page 23 of this Domus decision, the Tribunal stated as follows :

1. Some other landmark decisions here which provide useful guidance include Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554, 271 Williams Street Pty Ltd v City of Melbourne [1975] VicRp 15; [1975] VR 156 and Rosemeier v City of Greater Geelong (No 1) (1997) 20 AATR 86.

1. Having dealt with the issue of "statutory validity", I now deal with the next issue of whether or not the permit conditions are acceptable when assessed against the case law on point. In particular, I refer to the useful test set out above from the Domus Designs decision.
2. My finding here is that all three contentious permit conditions meet the relevant test from the applicable cases.
3. In relation to the contentious Condition 5 which requires the installation of a street light at the intersection of Nott Road and Saw Pit Flat Road, I am satisfied that there is a reasonable nexus here between the requirement for the street light and the five lot subdivision being approved. Where up to five new occupants will be living along this section of Saw Pit Flat Road in the future, I consider it reasonable that the permit holder be required to install a street light at this intersection location, so as to provide greater visibility and security for these future occupants. As the relevant pole is already in existence, the relevant works I am told by Council simply involve installing a street light on that pole, at a likely expense of in the order of $1000 to $1200. In the context of a five lot subdivision, this hardly seems an outrageous requirement.
4. Turning now to the requirement under the two other contentious permit conditions that the relevant section of Saw Pit Flat Road be upgraded from its current gravel form, I see the key factors in favour of these conditions to be as follows.
5. First, although I accept that Saw Pit Flat Road continues further north from this area, the indications are that this area further north features very limited population and quite low traffic levels. This is reinforced by the traffic count information provided by Council at the hearing, which indicates that currently the average vehicle numbers per day on this section of Saw Pit Flat Road is in the order of 60 vehicles.
6. Second, even if the current owners of the subject sites are happy to use an unsealed gravel road, not everyone else will necessarily share this view, and I agree with Council that it seems fair to say that many other people in the community would (as part of buying one of the new lots) see the sealing of the road as having positive benefits such as less dust, less noise, improved braking in the event of an emergency situation etc.
7. Third, Council relied on the fact that it has prepared a "Rural Roads Design Levels of Service" document, which (amongst other things) sets out benchmark traffic levels above which any one relevant road in the municipality would ordinarily be expected to be upgraded from a gravel to a sealed road. If one applies this document to the circumstances here, the relevant benchmark for upgrading Saw Pit Flat Road from a gravel to some form of sealed surface is where the traffic levels reach more than 80 vehicles per day ("vpd").